Opinion

People v. Velez

2012 IL App (1st) 101325

Court: Appellate Court of Illinois
Filed: Mar 22, 2012
Status: Published
Cited by: 8 cases
Authority: More cited than 57.6%

finding the defendant’s act of shaving his goatee before turning himself in to the police was admissible as evidence of an attempt to avoid identification as the perpetrator

How later courts described this case

finding the defendant’s act of shaving his goatee before turning himself in to the police was admissible as evidence of an attempt to avoid identification as the perpetrator

Written by the judges who cited it.

The opinion

ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Velez, 2012 IL App (1st) 101325

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption SAMUEL VELEZ, Defendant-Appellant.

District & No. First District, Fourth Division

Docket No. 1-10-1325

Filed March 22, 2012

Rehearing denied April 16, 2012

Held On appeal from defendant’s conviction for child abduction, the appellate

(Note: This syllabus court rejected defendant’s contentions that he was denied due process

constitutes no part of when the trial court gave the pattern instruction on the permissive

the opinion of the court presumption that defendant acted with an unlawful purpose when he

but has been prepared attempted to lure the victim into his van, that the “luring” section of the

by the Reporter of child abduction statute was unconstitutionally vague as applied to him,

Decisions for the and that the trial court erred in denying defendant a bill of particulars, in

convenience of the refusing to allow the cross-examination of an officer about the search of

reader.)

defendant’s van, in finding defendant’s offense was sexually motivated

for purposes of sentencing, and in requiring defendant to register as a sex

offender.

Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-5043; the

Review Hon. Colleen McSweeney-Moore, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier, Alan D. Goldberg, and Sarah Curry, all of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Mary

L. Boland, and Tasha-Marie Kelly, Assistant State’s Attorneys, of

counsel), for the People.

Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court,

with opinion.

Presiding Justice Lavin and Justice Sterba concurred in the judgment and

opinion.

OPINION

¶1 After a jury trial, defendant Samuel Velez was convicted of child abduction and

sentenced to two years’ incarceration. On appeal, defendant contends: (1) he was denied his

due process rights due to a permissive presumption contained in a jury instruction given to

the jury; (2) the child abduction statute under which defendant was convicted is

unconstitutionally vague as applied to defendant; (3) the trial court erred in denying his

motion for a bill of particulars; (4) the trial court erred in precluding defense counsel from

cross-examining a police officer regarding what he found when searching defendant’s van;

(5) the trial court erred in finding that defendant’s offense of child abduction was sexually

motivated where that inference was not supported by the underlying facts of the offense; and

(6) he was denied his due process rights where, because there were inadequate procedural

safeguards during his hearing on sexual motivation, the trial court arbitrarily found the

offense to be sexually motivated. For the following reasons, we affirm.

¶2 BACKGROUND

¶3 Defendant was charged via indictment with one count of child abduction. Prior to trial,

defendant filed a motion for a bill of particulars, requesting that the State define the “exact

statement(s) or action(s)” which form the “other than a lawful purpose.” The State filed a

response in which it stated that it would “rely on the statements and actions of the defendant

when he confronted [J.H.] on February 20, 2008 at approximately 3:15 P.M. in the area of

9500 S. Oak Park Avenue, Oak Lawn, Illinois as summarized in the Oak Lawn Police

Department reports that were previously tendered to defense counsel.” The court denied the

motion.

¶4 The following evidence was adduced at trial. On February 20, 2008, 14-year-old J.H. was

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an eighth-grade student at Simmons Middle School located on 95th Street in Oak Lawn,

Illinois. When school ended that day at 3 p.m., J.H. walked down 95th Street to meet her

mother. J.H. was wearing a hooded winter coat and had a school bag on her shoulder.

¶5 J.H. normally met her mother near the Car Max on 95th Street after school. That day,

however, J.H. arrived at Car Max and saw that her mother was not there. As was prearranged

for occasions when her mother could not get to their meeting place on time, J.H. began

walking down 95th Street, westbound to Oak Park Avenue. Per the plan, she would continue

heading westward until she would meet up with her mother.

¶6 As J.H. walked down 95th Street, a man in a white van slowed down, looked at her,

smiled, and beeped his horn. J.H. testified at trial that the man did a “double take.” J.H. tried

to ignore him, put her head down and kept walking. J.H. identified defendant as this man in

court.

¶7 J.H. continued walking, and eventually turned right onto Oak Park Avenue. When she

turned, she noticed the same white van parked on Oak Park Avenue with the passenger side

window rolled down and the engine still running. J.H. put the hood on her coat up and kept

walking, trying to ignore the man even though her path took her right by the passenger

window. As she walked past the van, the man said, “Hey baby girl, how you doing?” The

man was sitting in the driver’s seat, leaning toward the open window, and motioning for her

to approach the van.

¶8 J.H. felt scared and began walking faster in an attempt to get away from defendant.

Defendant asked her if she needed a ride home. J.H. continued walking quickly. Defendant

began driving slowly alongside J.H. and asked her if she had just gotten out of school. J.H.

did not respond. Defendant continued driving alongside J.H. and again asked her if she

needed a ride home. At that point, J.H. saw her mother down the street and told defendant,

“No, my mom’s right there.” J.H. ran to her mother’s car and defendant drove away.

¶9 Meanwhile, Kathleen H., J.H.’s mother, had driven to Oak Park Avenue to look for J.H.

As she sat in her car, she saw J.H. walking toward her. As Kathleen H. waited, she saw a

white van pull around the corner, park on the side of the road, and roll down the passenger

side window. Kathleen H. then saw J.H. turn the corner and pull her hood up. She thought

something did not feel right because she could see J.H. “tensing up” near the van. As she

watched, she saw defendant lean over and talk to J.H., and saw J.H. walk faster in her

attempt to escape defendant. Defendant kept pace with J.H. in his van.

¶ 10 J.H. reached Kathleen’s car and told her mother what had happened. Kathleen called the

police and began following defendant’s van. She provided the police with a description of

the van and the license plate number. The police instructed her to stop following the van and

to meet them in a nearby parking lot. At the parking lot, Kathleen and J.H. spoke with

various officers, including Chicago police officer Brian Williams. J.H. told Officer Williams

that the man who had been following her had a goatee.

¶ 11 After speaking with Kathleen and J.H., Officer Williams and his field training officer

Thomas Culhane returned to the Oak Lawn police station to continue their investigation.

They had the license plate number as well as information that the van had the word “Integra”

written on the side. They contacted Integra Healthcare Systems, a medical equipment

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delivery service. Officer Williams spoke with Barbara Anderson, the director of operations,

and informed her of the situation.

¶ 12 Anderson contacted her driver supervisor, Michael Volarevic, and asked him to look up

the vehicle plate number to see which driver was assigned to that van. Volarevic did so and

saw that it was assigned to defendant. He then called defendant on his cell phone and was

unable to reach him. About 20 minutes later, defendant called Volarevic. Defendant was

scheduled to be at 119th Street and Halsted, but he informed Volarevic that he was in Oak

Lawn having lunch. Volarevic instructed defendant to go to the Oak Lawn police station,

explaining that the police had gotten a complaint. He asked defendant what had happened.

Volarevic testified that defendant then told him he did not know what he was talking about.

He explained he had just eaten lunch, jumped in his van, and “saw just a good-looking girl

on the street, and just whistled at her. I didn’t get out of my car or anything.” Volarevic also

noted that, when he saw defendant the morning of February 20, 2008, defendant had a “very

short clean-cut goatee.”

¶ 13 On cross-examination, Volarevic denied having spoken to police in February 2008. He

testified that he first talked with the police a year and a half after the incident.

¶ 14 Anderson informed the police that defendant was the driver of the van in question.

Around 6 p.m., defendant arrived at the police station, and Officer Williams noticed that he

looked as though he had recently shaved with a dry razor. He did not have a goatee. After

being informed of his Miranda rights, defendant agreed to talk with the police.

¶ 15 Defendant told the officers that he had been in the area of 95th and Natoma at 3 p.m. that

day placing a to-go order at the Lucky Burrito restaurant. Defendant said he then proceeded

to the 9400 block of Oak Park Avenue, parked his van, and ate his burrito. Defendant said

he was parked there for about 10 minutes and, during that time, he did not speak to anybody

or see anybody.

¶ 16 Officer Williams testified that he then went to the Lucky Burrito and verified that

defendant had placed a to-go order that afternoon. The restaurant’s video surveillance

recording showed defendant entering the restaurant and placing his order, and also showed

the van with “Integra” written on it parked outside.

¶ 17 Later that evening, J.H. and Kathleen identified defendant in a photo array at the police

station. They also identified defendant’s van in the parking lot as the one they saw earlier.

¶ 18 On February 21, J.H. and her parents returned to the police station to speak with Cook

County Assistant State’s Attorney (ASA) Nicholle Hempel. ASA Hempel testified at trial

that J.H. seemed to be a “typical grammar age school student” who “looked young.” J.H. and

Kathleen identified defendant in a lineup.

¶ 19 ASA Hempel then spoke with defendant, who again waived his Miranda rights. ASA

Hempel testified that defendant gave her an account of the day similar to that he had

previously given Officer Williams. Specifically, defendant said he was working on February

20, and that, around 3:00 p.m., he purchased a burrito at the Lucky Burrito and parked at 95th

Street and Oak Park to eat in his van. Defendant claimed that he remained in his van and did

not talk to or see anybody else. Defendant told ASA Hempel that he had worn a goatee in the

past, but that he shaved it off two or three days prior.

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¶ 20 The jury found defendant guilty of child abduction. Defendant filed a motion for a new

trial, which was denied. The court sentenced defendant to two years’ incarceration. It also

found that the offense in this case was sexually motivated, explaining that it could think of

situations where an individual attempts to lure a child into a vehicle where it might not be

sexually motivated, such as where the individual holds the child for ransom. However, in this

case, it believed the crime was sexually motivated.

¶ 21 Defendant appeals.

¶ 22 ANALYSIS

¶ 23 I. Jury Instruction Issue

¶ 24 Defendant first contends that the trial court improperly instructed the jury. Specifically,

defendant argues that a jury instruction given, Illinois Pattern Jury Instructions, Criminal, No.

8.11A (4th ed. 2000) (hereinafter IPI Criminal 4th No. 8.11A), was improper as a matter of

law because the permissive presumption within deprived defendant of due process where (1)

there is no rational connection between the fact that defendant attempted to lure a child into

his van and the resulting presumption that he did so with an unlawful purpose; and (2) the

State failed to introduce corroborating evidence of defendant’s guilt, and the presumed fact

that defendant acted with an unlawful purpose “does not flow beyond a reasonable doubt

from the proven facts.” We disagree.

¶ 25 First, the State urges this court to review this issue for plain error, arguing that defendant

forfeited this issue on appeal by failing to properly preserve it. See People v. Chapman, 194

Ill. 2d 186, 225 (2000) (failure to properly preserve an alleged error by both an objection at

trial and a written posttrial motion constitutes a procedural default of that error on review).

Specifically, the State argues that, while defendant argued to the trial court that the jury

instruction was impermissible because it “essentially shifted the burden to him and indicated

to the jury that he needed to present some evidence in order to rebut the inference” and

included the same issue in his posttrial motion, that issue differs from the issue before us on

appeal. Defendant responds that he did, in fact, properly preserve this issue for appeal

because his argument on appeal, that the instruction created an unlawful permissive

presumption, is the same as that made below, that is, that the instruction impermissibly

shifted the burden of proof to defendant. We disagree with the State that the argument on

appeal presents a “wholly different issue” than that presented below and find that defendant

properly preserved this issue for appeal.

¶ 26 The purpose of jury instructions is to convey to the jury the correct principles of law

applicable to the evidence submitted to it so that the jury may reach a correct conclusion

according to the law and the evidence. People v. Hopp, 209 Ill. 2d 1, 8 (2004). While the

giving of jury instructions is generally within the discretion of the trial court, we review de

novo the question of whether the jury instructions accurately conveyed the applicable law to

the jury. People v. Parker, 223 Ill. 2d 494, 501 (2006). Rather than considering a jury

instruction in isolation, we review whether the instructions given the jury “ ‘considered as

a whole, fully and fairly announce the law applicable to the respective theories of the People

and the defense.’ ” People v. Terry, 99 Ill. 2d 508, 516 (1984) (quoting People v. Kolep, 29

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Ill. 2d 116, 125 (1963)).

¶ 27 The jury instruction in question reads:

“If you find that the defendant lured, or attempted to lure a child under 16 years of

age into a motor vehicle, and that he did so without the consent of a parent or lawful

custodian of the child, you may infer it was for other than a lawful purpose.

You are never required to make this inference. It is for the jury to determine whether

the inference should be made. You should consider all of the evidence in determining

whether to make this inference.” Illinois Pattern Jury Instructions, Criminal, No. 8.11A

(4th ed. 2000) (hereinafter IPI Criminal 4th No. 8.11A).

¶ 28 A person accused of a crime may only be convicted of a criminal offense upon proof that

establishes guilt beyond a reasonable doubt. People v. Hester, 131 Ill. 2d 91, 98 (1989).

Nonetheless, the State may be entitled to rely upon presumptions or inferences in order to

establish a defendant’s guilt. Hester, 131 Ill. 2d at 98. “A presumption is a legal device that

either permits or requires the trier of fact to assume the existence of an ultimate fact, after

establishing certain predicate facts.” People v. Woodrum, 223 Ill. 2d 286, 308 (2006) (citing

People v. Pomykala, 203 Ill. 2d 198, 203 (2003), citing People v. Watts, 181 Ill. 2d 133, 141

(1998)). “An inference is a factual conclusion that can rationally be drawn by considering

other facts. Thus, an inference is merely a deduction that the fact finder may draw in its

discretion, but is not required to draw as a matter of law.” People v. Funches, 212 Ill. 2d 334,

340 (2004) (citing Michael H. Graham, Cleary & Graham’s Handbook of Illinois Evidence

§ 302.2, at 81 (8th ed. 2004), and 1 Clifford S. Fishman, Jones on Evidence § 4:1, at 299-300

(7th ed. 1992)); Woodrum, 223 Ill. 2d at 308 (“The fact finder is free to accept or reject a

permissive presumption.”).

¶ 29 Here, the instruction at issue contains an inference. An inference may also be referred to

as a permissive presumption. People v. Frazier, 123 Ill. App. 3d 563, 572 (1984) (“An

inference, occasionally referred to as a ‘permissive presumption,’ permits but does not

require a jury to find that one fact is proved by the existence of another fact.”). An inference

does not violate due process where: (1) there is a rational connection between the basic fact

and the presumed fact; (2) the presumed fact must be more likely than not to flow from the

basic fact; and (3) the inference is supported by corroborating evidence of guilt. People v.

Housby, 84 Ill. 2d 415, 424 (1981). “If there is no corroborating evidence, the leap from the

basic fact to the presumed element must still be proved beyond a reasonable doubt.”

Funches, 212 Ill. 2d at 343 (citing Hester, 131 Ill. 2d at 100); Housby, 84 Ill. 2d at 421

(citing County Court v. Allen, 442 U.S. 140, 165-67 (1979)).

¶ 30 A person commits child abduction by, in relevant part, intentionally luring or attempting

to lure a child under 16 years of age into a motor vehicle without the consent of a parent or

lawful custodian for other than a lawful purpose. 720 ILCS 5/10-5(b)(10) (West 2008). The

phrase “other than a lawful purpose” in the child abduction statute implies actions which

violate the Criminal Code of 1961 (720 ILCS 5/1-1 et seq. (West 2008)). People v. Williams,

133 Ill. 2d 449, 453-54 (1990). “The required showing *** [of] ‘other than a lawful purpose’

is essentially a statement of the criminal intent, or mens rea. Criminal intent is a state of

mind that is usually inferred from the surrounding circumstances.” Woodrum, 223 Ill. 2d at

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316 (citing People v. Maggette, 195 Ill. 2d 336, 354 (2001)).

¶ 31 The State presented sufficient evidence to satisfy the three elements set forth in Housby

as to whether the act proved, i.e., that defendant attempted to lure J.H. into his vehicle, was

committed for “other than a lawful purpose.” See 720 ILCS 5/10-5(b)(10) (West 2008). The

evidence adduced at trial showed that J.H. was a 14-year-old girl who was walking along a

sidewalk after school, carrying a bookbag. Defendant, a 41-year-old man whom J.H. did not

know, saw her. He smiled at her, honked his horn, and slowed his van in order to talk to her.

J.H. tried to ignore him, put her head down, and walked faster. J.H. turned a corner and saw

defendant parked in his van up the street. When she neared the van, defendant asked J.H. if

she wanted a ride home. J.H. continued to ignore him. She put up her hood and walked

faster. Despite all of this, defendant continued to pursue J.H. He paced her with his van,

driving alongside her as she continued walking down the sidewalk. He called her “baby girl”

and again asked her of she wanted a ride home. He leaned from the driver’s seat to the

passenger seat, motioning through the window for her to approach the van. Defendant only

left J.H. alone when J.H. told him she saw her mother and began to run toward her mother’s

car.

¶ 32 We find a rational connection between the fact proved, i.e., that defendant attempted to

lure a child under 16 into his vehicle, and the fact presumed, i.e., that defendant did so with

other than a lawful purpose. The jury accepted J.H.’s testimony that defendant used words

and gestures designed to direct her to enter his car. She felt fearful, tried to ignore him, and

then increased her pace in order to escape from defendant. Defendant called her “baby girl”

and drove alongside her, beckoning her toward his vehicle. When viewed in connection with

all of the other evidence adduced at trial, including defendant leaving the scene when J.H.

told him she saw her mother, his attempt to change his appearance that day, and his denial

to police that he had even seen J.H., the rational inference to be drawn is that defendant had

an unlawful intent when he attempted to lure J.H. into his van.

¶ 33 We are not persuaded by defendant’s argument that, because he did not touch, harm, or

threaten J.H., there is no rational connection between the fact proved and the fact presumed.

Specifically, defendant argues:

“There is no substantial assurance that just because [defendant] honked at J.H., asked

her how she was doing, and offered her a ride home without her parent’s consent, that

he more likely than not did so for an unlawful purpose. *** [Defendant] spoke to a young

girl in the middle of the afternoon on a busy street from his work van. [Defendant] did

not touch or harm J.H. He did not threaten her. He did not get out of his van. As soon as

J.H. said she did not need a ride, [defendant] drove away. The fact that [defendant]

offered J.H. a ride home without the consent of her parents does not rationally support

the presumption that he did so without a lawful purpose.”

¶ 34 In People v. Patten, 230 Ill. App. 3d 922 (1992), this court addressed the fact that the

child abduction statute treats an attempted abduction and a completed abduction as the same

crime:

“Defendant next asserts that punishing unsuccessful abductions as severely as

successful abductions is an unreasonable method of accomplishing the objective of

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protecting children; therefore, it is in violation of due process. More or different people

are not affected, he argues; only the punishment is increased for attempt, which is

inconsistent with the idea of punishing attempt acts less seriously than completed acts.

Ill. Rev. Stat. 1989, ch. 38, par. 8-4(c).

The legislative history of section 10-5(b)(10) reveals the concern that attempted

luring of a child is as serious a threat to the safety of a child as a successful abduction.

(See People v. Williams [,133 Ill. 2d 449, 457 (1990)].) In Williams, the supreme court

observed that ‘[o]nce a child is taken into a vehicle and whisked away by a person

harboring a criminal motive, it becomes exceedingly difficult, if not impossible, for law

enforcement personnel to intervene for the protection of the child.’ (133 Ill. 2d at 457.)

Here, the increased penalty may have a deterrent effect on would-be violators by

declaring that an attempt will be treated as harshly as a crime accomplished.

Accordingly, we find that section 10-5(b)(10) is not in violation of the proportionate

penalties or due process clauses.” Patten, 230 Ill. App. 3d at 931.

The child abduction statute criminalizes the act of luring a child, whether or not the act is

successful, in order to protect children from further acts of violence. Under the statute, there

is no requirement that a defendant must actually touch or harm the child in order to be guilty

of the crime of child abduction. Therefore, defendant’s argument that, because he did not

actually physically harm J.H., his attempted luring of J.H. into his vehicle does not rationally

support the presumption that he did so with other than a lawful purpose is unpersuasive.

¶ 35 Nor do we find support for defendant’s argument that he was denied due process under

Housby because the State failed to introduce corroborating evidence of defendant’s guilt in

order to allow the jury to make the inference in IPI Criminal 4th No. 8.11A. Rather, the State

introduced evidence at trial that, after defendant attempted to lure J.H. into his van and

before he went to the police station later that same day, he changed his appearance by

shaving off the goatee he had worn for at least six months prior. Had defendant been

innocently offering J.H. a ride home, as he argues, there would be no reason for him to alter

his appearance in an apparent attempt not to be identified by J.H.

¶ 36 Moreover, the fact that defendant fled when he saw J.H.’s mother nearby shows a

consciousness of guilt which raises a rational inference of unlawful intent. See People v.

McDonald, 168 Ill. 2d 420, 448 (1995) (“While evidence of flight by itself is not sufficient

to establish guilt, it is a circumstance from which a trier of fact may infer consciousness of

guilt. (See People v. Harris (1972), 52 Ill. 2d 558, 561.) Consequently, a trier of fact may

consider a defendant’s flight with other factors tending to establish guilt. ([People v.]

Campbell, 146 Ill. 2d [363,] 388 [(1992)]; People v. Brown (1963), 27 Ill. 2d 23, 26.)”).

¶ 37 Finally, defendant’s statement at the police station to police officers and to ASA Hempel

also supports the inference that he acted for other than a lawful purpose. When defendant

spoke with both the police and the ASA, he denied talking to or even seeing J.H. in the area

of 95th and Oak Park. If he had an innocent intent in talking with J.H. to merely offer J.H.

a ride home, as he posits on appeal, then he likely would have said as much to the authorities.

Instead, defendant tried to conceal his interaction with J.H., which could be considered

evidence of his guilt, corroborating the testimony of J.H. and her mother.

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¶ 38 Defendant was not deprived of his due process rights by the presumption contained in

IPI Criminal 4th No. 8.11A where the evidence at trial clearly showed a rational connection

between the inferred fact and the proved fact, i.e., between the fact that defendant attempted

to lure J.H. into his van and the presumption that he did so for an unlawful purpose; the

inferred fact was more likely than not to flow from the proved fact, i.e., it was more likely

than not that defendant lured J.H. for an unlawful purpose; and the inference was supported

by corroborating evidence of guilt, i.e., that defendant fled the scene, altered his appearance,

and denied having any interaction with J.H.. See Housby, 84 Ill. 2d at 424. The jury was

instructed that it could infer–but was not required to do so–that defendant’s attempt to lure

J.H. into his van was for other than a lawful purpose. This is precisely what the law requires.

The jury inferred an unlawful purpose and found defendant guilty of child abduction.

¶ 39 In addition, along with the “you may infer” language, the jury was also instructed that

defendant is presumed innocent at every stage, a presumption that is not overcome unless

from all the evidence it is convinced beyond a reasonable doubt that defendant is guilty, and

that the burden to prove defendant guilty beyond a reasonable doubt remains with the State

throughout the case. “When examining instructions in a case, no single instruction is to be

judged in artificial isolation. It must be viewed in the context of the entire charge.” Housby,

84 Ill. 2d at 433-34. In the case at bar, each instruction given the jury was taken from the

Illinois Pattern Jury Instructions, and each accurately stated the law. Accordingly, the

instructions comported with Illinois Supreme Court Rule 451(a) (Ill. S. Ct. R. 451(a) (eff.

July 1, 1997)), which requires that, where a court in a criminal case determines that the jury

should be instructed on a subject, and the Illinois Pattern Jury Instructions contains an

applicable instruction, then the IPI “shall be given unless the court determines it does not

accurately state the law.” (Internal quotation marks omitted.) People v. Durr, 215 Ill. 2d 283,

300-01 (2005). We find herein that defendant was not denied due process where the trial

court instructed the jury with IPI Criminal 4th No. 8.11A. Accordingly, the trial court did not

err in instructing the jury with IPI Criminal 4th No. 8.11A.

¶ 40 II. As-Applied Challenge to Child Abduction Statute

¶ 41 Defendant next contends that the “luring” section of the child abduction statute (720

ILCS 5/10-5(b)(10) (West 2008)) is unconstitutionally vague as applied to him, as the statute

did not provide him adequate notice of the conduct that would subject him to criminal

penalties. Specifically, defendant argues that the failure “to define the unlawful act or

purpose alleged” subjected him to the “arbitrary whims of the jury” as to whether the State

proved this element of the offense and failed to give him “adequate notice as to what actions

or conduct subjected [him] to criminal penalties.” We disagree.

¶ 42 A statute is presumed to be constitutional and, thus, the party challenging it bears the

burden of clearly demonstrating its invalidity. See People ex rel. Sherman v. Cryns, 203 Ill.

2d 264, 290 (2003); accord People v. Bailey, 167 Ill. 2d 210, 225 (1995); People v. Zapata,

347 Ill. App. 3d 956, 966 (2004). We are duty-bound to construe a statute in a manner that

upholds its validity and constitutionality, if this can reasonably be done. See Cryns, 203 Ill.

2d at 290-91; accord In re C.E., 161 Ill. 2d 200, 227 (1994); People v. Cosby, 305 Ill. App.

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3d 211, 224 (1999) (we must affirm statute’s constitutionality and validity whenever

possible). In examining a statute’s constitutionality, we employ a de novo standard of review.

See Zapata, 347 Ill. App. 3d at 967.

¶ 43 For a statute to comply with due process, it must meet two requirements. First, it must

give a person of ordinary intelligence a reasonable opportunity to know what conduct is

lawful and what conduct is unlawful so that he may act accordingly. See Bailey, 167 Ill. 2d

at 228. However, a statute need not define the proscribed conduct with “mathematical

precision” or give letter-perfect notice of this conduct to avoid invalidation on vagueness

grounds. See People v. Holt, 271 Ill. App. 3d 1016, 1026 (1995). Rather, as long as the

statute clearly applies to the defendant’s conduct in light of the facts of the case, a challenge

to the statute’s constitutionality based upon vagueness will not succeed. See Cryns, 203 Ill.

2d at 291-92; see Holt, 271 Ill. App. 3d at 1026 (where statute prohibits conduct knowingly

done to accomplish that which is prohibited, accused cannot claim he suffered from lack of

warning or knowledge that his conduct violated the law).

¶ 44 The second requirement of due process is that the statute must provide explicit standards

to police officers, judges and juries who apply the statute in order to prevent its arbitrary and

discriminatory enforcement. See In re C.E., 161 Ill. 2d at 227. However, the statute will not

be declared vague if a mere hypothetical situation involving disputed meanings of some of

its terms is presented. See People v. Greco, 204 Ill. 2d 400, 416 (2003); see also In re C.E.,

161 Ill. 2d at 211 (“ ‘[t]he fact that the [statute] might operate unconstitutionally under some

conceivable set of circumstances is insufficient to render it wholly invalid’ ” (quoting United

States v. Salerno, 481 U.S. 739, 745 (1987))); Holt, 271 Ill. App. 3d at 1027 (“statute is not

unconstitutionally vague simply because it allows some room for judicial interpretation”).

Rather, where judicial construction of the statute may be employed to render it sufficiently

definite so as to preclude arbitrary or discriminatory application, a challenge to the statute’s

constitutionality based upon vagueness will not succeed. See In re C.E., 161 Ill. 2d at 228.

In sum, a statute violates due process on vagueness grounds “ ‘ “only if its terms are so ill-

defined that the ultimate decision as to its meaning rests on the opinions and whims of the

trier of fact rather than any objective criteria or facts.” ’ ” Cryns, 203 Ill. 2d at 291 (quoting

Stern v. Norwest Mortgage, Inc., 179 Ill. 2d 160, 168 (1997), quoting People v. Burpo, 164

Ill. 2d 261, 266 (1995)).

¶ 45 Applying the two-part due process analysis outlined earlier, it is clear that the child

abduction statute is indeed constitutional, not void for vagueness, and should be affirmed.

The statute both sets forth what conduct is unlawful and provides sufficiently definite

standards to guide triers of fact so that its application does not depend merely on their private

conceptions. There is no doubt that defendant’s conduct in the instant case clearly falls

within the statutory proscription. The relevant portion of the child abduction statute reads as

follows:

“(b) A person commits child abduction when he or she does any one of the following:

***

(10) Intentionally lures or attempts to lure a child under the age of 16 into a motor

vehicle, building, housetrailer, or dwelling place without the consent of the parent or

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lawful custodian of the child for other than a lawful purpose.” 720 ILCS 5/10-

5(b)(10) (West 2008).

It is evident from the plain language of the statute that the luring or attempted luring of a

child into a vehicle or dwelling place without the consent of a parent or custodian is illegal

when the individual committing the luring has any underlying criminal intent or mens rea.

See Woodrum, 223 Ill. 2d at 316 (“The required showing *** [of] ‘other than a lawful

purpose’ is essentially a statement of the criminal intent, or mens rea. Criminal intent is a

state of mind that is usually inferred from the surrounding circumstances.” (citing Maggette,

195 Ill. 2d at 354)). Therefore, defendant had sufficient notice regarding precisely when his

actions became criminal. See Bailey, 167 Ill. 2d at 228 (to comport with due process

requirements, a statute “must give a person of ordinary intelligence a reasonable opportunity

to know what conduct is lawful and what conduct is unlawful so that he may act accordingly”

(internal quotation marks omitted)).

¶ 46 We specifically disagree with defendant’s assessment that, “[w]ithout further

explanation, the statute as applied proscribed [defendant] from action; for ‘other than a

lawful purpose.’ This broad term provided virtually no guidance as to the statute’s reach as

applied to [defendant]. Because this term was left undefined and unexplained, the statute did

not provide adequate notice of what conduct was proscribed, and therefore the statute was

unconstitutionally vague as applied.” Rather, the statute clearly informed defendant that, if

he attempted to lure J.H. in order to commit actions which would violate the Criminal Code,

he would be guilty of child abduction.

¶ 47 Our supreme court considered an as-applied vagueness challenge to this same statute in

Woodrum. Similar to the case at bar, the Woodrum defendant argued that, because he was not

provided notice of the unlawful purpose, he lacked adequate notice to prepare his defense.

Woodrum, 223 Ill. 2d at 303. The court, relying on Williams, noted that it had previously held

that the phrase “other than a lawful purpose” was not unconstitutionally vague on its face

because, given its ordinary meaning, it implied “actions that violate the Criminal Code.”

Woodrum, 223 Ill. 2d at 303 (citing Williams, 133 Ill. 2d at 453-54). The court then reasoned

that the phrase alone “gives adequate notice of the conduct that will subject a person to

criminal penalties.” Woodrum, 223 Ill. 2d at 303. After finding that the phrase gives adequate

notice, the court noted that, in that particular case, the defendant’s unlawful purpose or intent

was clear from the detailed statement he provided to police. Woodrum, 223 Ill. 2d at 303.

Defendant urges us to find this small portion of the court’s opinion to be dispositive of the

case before us, as he did not make such an incriminating statement to the police regarding

his criminal intent, or lack thereof. However, in Woodrum, the court did not state or imply

that, short of a clear statement of unlawful intent, its decision would have been different.

Woodrum, 223 Ill. 2d at 303. We decline to extend Woodrum in such a manner.

¶ 48 Moreover, because law enforcement, judges, and juries have clear guidelines as to what

conduct is criminal, there is no danger of arbitrary and discriminatory enforcement in this

case. See C.E., 161 Ill. 2d at 227 (the second requirement of due process is that the statute

must provide explicit standards to police officers, judges and juries who apply the statute in

order to prevent its arbitrary and discriminatory enforcement). The phrase “other than a

lawful purpose” in the child abduction statute implies actions which violate the Criminal

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Code. Williams, 133 Ill. 2d at 453-54. As such, the statute provided sufficient guidance to

law enforcement, judges, and the jury as to what conduct is criminal. In addition, while the

jurors were not presented with a specific underlying offense which was alleged to have

motivated defendant’s actions, they were presented with clear parameters defining the

boundaries of the offense, that is, whether defendant attempted to lure J.H. into his vehicle

in order to commit actions which would violate the Criminal Code.

¶ 49 The phrase “for other than a lawful purpose” informed defendant that if his act of luring

was committed with a criminal intent, he was guilty of the offense of child abduction.

Accordingly, because the child abduction statute is not ill-defined or lacking all objective

criteria, we will not declare it to be unconstitutionally vague so as to violate defendant’s due

process rights.

¶ 50 III. The Bill of Particulars

¶ 51 Next, defendant contends that the trial court erred when it denied defendant a bill of

particulars. Specifically, defendant argues that, because the indictment failed to allege the

specific unlawful purpose which defendant possessed, he was deprived of his ability to

prepare and present an adequate defense when the court denied his motion for a bill of

particulars. We disagree.

¶ 52 The trial court may require the State to furnish a bill of particulars when an indictment

fails to sufficiently specify the particulars of the charged offense in order to enable a

defendant to prepare a defense. 725 ILCS 5/111-6 (West 2008). “The purpose of a bill of

particulars is to give the defendant notice of the charge and to inform the defendant of the

particular transactions in question, thus enabling preparation of a defense.” Woodrum, 223

Ill. 2d at 301-02. “ ‘[W]here an indictment sufficiently informs the defendant of the offense

charged against him there is no need for a bill of particulars ***.’ ” People v. Lego, 116 Ill.

2d 323, 337 (1987) (quoting People v. Tsukas, 406 Ill. 613, 616-17 (1950)). We review the

trial court’s decision on a motion for a bill of particulars for abuse of discretion. Lego, 116

Ill. 2d at 336-37. An abuse of discretion is where the trial court’s ruling is “arbitrary, fanciful,

[or] unreasonable,” or where no reasonable person would take the view adopted by the trial

court. People v. Hall, 195 Ill. 2d 1, 20 (2000).

¶ 53 A person commits child abduction by, in relevant part, intentionally luring or attempting

to lure a child under 16 years of age into a motor vehicle without the consent of a parent or

lawful custodian for other than a lawful purpose. 720 ILCS 5/10-5(b)(10) (West 2008).

¶ 54 Here, the indictment charging defendant with child abduction sufficiently informed

defendant of the nature and elements of the charged offense. It precisely tracked the statutory

language of the child abduction statute by alleging that defendant committed the offense of

child abduction in that:

“He, intentionally attempted to lure [J.H.], a child under the age of 16, into a motor

vehicle without the consent of her parent, or lawful custodian, for other than a lawful

purpose, in violation of [the child abduction statute].”

¶ 55 Prior to trial, defendant filed a motion for a bill of particulars, requesting the court to

order the State to produce a bill of particulars stating the following:

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“1. The exact statement(s) or action(s), whether verbal or not, which form the

indicate [sic] the ‘other than a lawful purpose;’

2. The unlawful purpose the Defendant was going to commit upon the minor;

3. The name and address of every person relied on by the prosecution whom heard

[sic] the communication describing or stating the unlawful purpose ***.”

¶ 56 The State filed a response to this motion, stating:

“1. The People will rely on the statements and actions of the defendant when he

confronted [J.H.] on February 20, 2008 at approximately 3:15 P.M. in the area of 9500

S. Oak Park Avenue, Oak Lawn, Illinois as summarized in the Oak Lawn Police

Department reports that were previously tendered to defense counsel.

2. The People object. See People v. Joyce, 210 Ill. App. 3d 1059, 569 N.E.2d 1189

(2nd Dist. 1991).

3. The People will provide a list of all witnesses and their addresses in a formal

answer to discovery.”

¶ 57 In Joyce, the defendant was convicted of child abduction. Joyce, 210 Ill. App. 3d at 1065.

Defendant’s indictment alleged:

“[T]he defendant intentionally attempted to lure M.W., a child under age 16, into a motor

vehicle for other than a lawful purpose and without the consent of a parent.” Joyce, 210

Ill. App. 3d at 1062.

¶ 58 Prior to trial, the defendant sought a motion for a bill of particulars seeking, in pertinent

part, information as to “the unlawful purpose that the defendant allegedly harbored at the

time.” Joyce, 210 Ill. App. 3d at 1062. The trial court ordered the State to amend its

indictment to include the possible unlawful purposes harbored by the defendant, and the

State responded by adding a list of 29 possible unlawful purposes. Joyce, 210 Ill. App. 3d

at 1062. This list included homicide, kidnapping, sexual assault, tattooing the body of a

minor, and violation of bail bond. Joyce, 210 Ill. App. 3d at 1062. On appeal, defendant

argued, in pertinent part, that the court erred in failing to dismiss the indictment because,

“although the indictment tracks the language of section 10-5(b)(10), the offense is one which

requires greater specificity in the charge.” Joyce, 210 Ill. App. 3d at 1066. Initially, the

appellate court admonished the State for its “cavalier” response to the defendant’s motion

for a bill of particulars. Joyce, 210 Ill. App. 3d at 1067. Then, the court noted that “[the]

indictment here initially tracked the statutory language of section 10-5(b)(10).” Joyce, 210

Ill. App. 3d at 1067. The court considered the facts of Williams, wherein the defendant’s

indictment, like the one at question in Joyce, “tracked the language of section 10-5(b)(10).”

Joyce, 210 Ill. App. 3d at 1067. Specifically, the Williams indictment charged that “ ‘the

defendant attempted to lure a child under the age of 16 into his car without the consent of her

parent or legal guardian ‘for other than a lawful purpose.’ ” Joyce, 210 Ill. App. 3d at 1067

(citing Williams, 133 Ill. 2d 451). “The indictment did not specify any particular unlawful

purpose harbored by the defendant at the time he allegedly attempted to lure the child into

his car. ([Williams,] 133 Ill. 2d 451.)” Joyce, 210 Ill. App. 3d at 1067. Ultimately, the Joyce

court found “the indictment that the supreme court approved in Williams was no more

specific than the one here. We therefore find that the defendant was sufficiently apprised of

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both the nature and the elements of the offense. See Williams, 133 Ill. 2d at 454.” Joyce, 210

Ill. App. 3d at 1067.

¶ 59 While we are mindful that the precise issue in Joyce was whether the indictment should

have been dismissed, which differs from the issue at bar regarding whether the motion for

the bill of particulars regarding the indictment should have been allowed, we find the

reasoning in Joyce instructive. The core of the issue here is whether defendant was

sufficiently informed of the nature and elements of the charged offense. We, like the Joyce

court, are presented with a situation in which the indictment for the crime of child abduction

precisely mirrors the statute for child abduction. The indictment in the case at bar contains

the same amount of specificity as that in Joyce and, like the Joyce court, we believe it

informed defendant of the nature and elements of the charged offense. Accordingly, the trial

court did not abuse its discretion in denying defendant’s motion for a bill of particulars where

defendant was fairly apprised of the nature of the charges against him.

¶ 60 IV. Cross-Examination of Officer Williams

¶ 61 Next, defendant contends that the trial court erred where it did not allow defendant to

cross-examine Officer Williams regarding his search of defendant’s van. Specifically,

defendant argues that the trial court violated his sixth amendment right to confrontation

when, after having testified that he searched defendant’s van, the trial court did not allow

defendant to cross-examine Officer Williams regarding what he found inside the van. We

disagree.

¶ 62 Both the federal and state constitutions protect a defendant’s right to cross-examine a

witness. People v. Ramey, 152 Ill. 2d 41, 67 (1992); People v. Nutall, 312 Ill. App. 3d 620,

626 (2000); U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. However, a trial court

may impose reasonable limits on cross-examination “based on concerns about, among other

things, *** interrogation[s] that [are] *** only marginally relevant.” Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986). Cross-examination is generally limited in scope to the

subject matter of the direct examination of the witness and to matters affecting the credibility

of the witness. People v. Terrell, 185 Ill. 2d 467, 498 (1998). Although a defendant is

afforded wide latitude when conducting cross-examination, “this important principle is

subject to limitations where the evidence sought provides an insufficient nexus to the

proposition it supposedly supports.” Nutall, 312 Ill. App. 3d at 628. “It is not error for a trial

court to refuse to permit a cross-examiner to go beyond the scope of the direct examination

in an effort to present his theory of the case.” People v. Hosty, 146 Ill. App. 3d 876, 882-83

(1986). The scope of cross-examination is within the sound discretion of the trial court, and

we will only disturb its ruling where there has been a clear abuse of discretion resulting in

manifest prejudice to the defendant. People v. Kliner, 185 Ill. 2d 81, 130 (1998). With these

principles in mind, we determine that the trial court did not abuse its discretion in limiting

the cross-examination of Officer Williams.

¶ 63 Here, Officer Culhane testified that when J.H. and her mother came to the Oak Lawn

police station, he took them to the parking lot where they identified defendant’s van as that

which defendant had been driving when he spoke to J.H. earlier in the day. Officer Williams

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testified that he searched the van. The portion of trial testimony that is the subject of

defendant’s complaint is as follows:

“Q. So did you search that van?

A. [OFFICER WILLIAMS:] Yes, I did.

Q. And in that van did you find any knives?